University of Minnesota Law School – Page 2

Why I Do Not Hope To Die at 75

Under the provocative title, “Why I Hope To Die at 75,” the 57-year-old Dr. Ezekiel Emanuel, the director of the Clinical Bioethics Department at the U.S. National Institutes of Health and head of the Department of Medical Ethics & Health Policy at the University of Pennsylvania, sets forth in The Atlantic Magazine what he claims to be his firm conclusion that he hopes to die in 18 years at age 75.

As a 75 year-old-man who was graduated from high school in 1957, the year Emanuel was born, I do not hope to die in the remaining months before I turn 76 or at any other set time.

Let us explore the reasons for these different conclusions.

Dr. Ezekiel Emanuel’s Reasons

According to Dr. Emmanuel, “[L]iving too long is . . . a loss. It renders many of us, if not disabled, then faltering and declining, a state that may not be worse than death but is nonetheless deprived. It robs us of our creativity and ability to contribute to work, society, the world. It transforms how people experience us, relate to us, and, most important, remember us. We are no longer remembered as vibrant and engaged but as feeble, ineffectual, even pathetic.” He then backs up this opinion with what he asserts as facts:

“We [in the U.S.] are growing old [in terms of increased life expectancy], and our older years are not of high quality.” Studies show, he says, that “increases in longevity seem to have been accompanied by increases in disability.” Another study found an “increase in the absolute number of years lost to disability [including mental disabilities like depression and dementia] as life expectancy rises.”[1]
Another medical researcher said, “health care hasn’t slowed the aging process so much as it has slowed the dying process.”
“[O]ur mental functioning deteriorates as we grow older: mental-processing speed, working and long-term memory, problem-solving and creativity.”
The “most dreadful of all possibilities: living with dementia and other acquired mental disabilities” while our society is expected to experience a “tsunami of dementia.”
As we age, we “accommodate our physical and mental limitations. Our expectations shrink. . . . [W]e choose ever more restricted activities and projects, to ensure we can fulfill them.”

He recognizes that “there is more to life than youthful passions focused on career and creating. There is [mentoring and] posterity: children and grandchildren and great-grandchildren.”

But these benefits of aging are outweighed for him by “the very real and oppressive financial and caregiving burdens” often imposed on other family members and by the psychological burdens on children unable to escape from the shadows of living parents.

Although Emanuel does not embrace euthanasia or suicide for himself, he has executed “a do-not-resuscitate order and a complete advance directive indicating no ventilators, dialysis, surgery, antibiotics, or any other medication. . . . In short, no life-sustaining interventions.” In addition, if and when he reaches age 75, he will seek to avoid any visit to a doctor and any regular preventive tests, screenings, or interventions. He says he “will accept only palliative—not curative—treatments if he is suffering pain or other disability.”

A desire to die at age 75, he says, “forces us to think about the end of our lives and engage with the deepest existential questions and ponder what we want to leave our children and grandchildren, our community, our fellow Americans, our world.”

He concludes with this caveat. “I retain the right to change my mind and offer a vigorous defense of living as long as possible. That, after all, would mean still being creative after 75.”

Responses to Emmanuel’s Reasons

I agree with Emmanuel that as we age we lose some of our physical and mental abilities and that executing a complete advance medical directive forbidding extreme life-sustaining interventions, as he and I have done, is a reasonable thing to do.

Otherwise I vigorously disagree with Emmanuel’s conclusion that a desire to die at age 75 is a reasonable conclusion and reject his argument that what others think of us or how they may remember us after we are gone is relevant to this issue. Apparently creativity is a central virtue for him, and its predictable decline as we age appear to be the major motivation for his stated desire to die at 75. Yes, creativity is important for many of us, but it is not the only virtue.

I also wonder why he does not contemplate retirement from actively working for a living as another stage of life with certain benefits. Nor does he really grapple with the facts, he briefly concedes, that many older people are happy with new interests like “bird watching, bicycle riding, pottery, and the like” and that “there is more to life than youthful passions focused on career and creating. There is posterity: children, grand children and great-grandchildren.” He also glosses over the fact that his own father (Dr. Benjamin M. Emmanuel), now about 87 years old, had a heart attack 10 years ago and since then has slowed down appreciably, but still says he is happy.

My Reasons for Not Wanting To Die at 75

At age 62 with some trepidation, I retired from the active practice of law. I wanted to escape the pressure of being a litigator who oftentimes was forced to be in professional relationships with opposing counsel who were disagreeable people. This produced stress that I wanted to eliminate as life-threatening. I also wanted to create time to do other things beside working while I was still in good health: travel, spend time with my grandchildren, learn new things and write. After my first 10 years of retirement I assessed my retirement and concluded that these years had been productive and enjoyable. That confirmed for me the wisdom of retiring when I did. These conclusions have been reconfirmed by my subsequent three additional years of retirement.

In this period I became actively involved in my church’s global partnerships and made three mission trips to Cuba and one to Cameroon and in the process made new international friends and learned a lot about the two countries. My involvement with Cuba prompted me to become an advocate for changing U.S. policies regarding the island. I could not have done this while still practicing law.

I also have reflected on my own life and affirmatively set about determining the many people and activities for which I was grateful. Yes, this could have been done while still working, but the pressures of working, I believe, would have meant postponing such reflections to another day that would never have come. This process of reflection, aided by worship at Minneapolis’ Westminster Presbyterian Church, has also enabled me to see certain of my activities as vocations in the Christian sense.

One of my activities in this first phase of retirement was being a part-time Adjunct Professor at the University of Minnesota Law School to co-teach international human rights law. In the process I learned a lot about this field of law and enjoyed interacting with law professors and students. I could not have done this while still practicing law.

At the end of 2010 I retired from law teaching in order to create time for sharing things I already had written and for research and writing on new topics that came along. In the spring of 2011 this desire lead to my creating and writing this blog. It is exciting to come across new things, like Emmanuel’s article that prompted this post. I frequently find that such things immediately start my composing an article in my head. Often this triggers a desire to do research, frequently using “Google” searches, but sometimes going to a library or sources of original documents. I enjoy this kind of puzzle and challenge as well as the writing.

In my retirement I also have thought about mortality, especially as friends, acquaintances and others my age die. But such thoughts are not depressing, but rather reminders that I too am mortal. Therefore, try to make the most of each day you have.

I do not worry about when I will die or wish that I will die at a particular age. Nor do I worry about what happens to me after death even though Christianity has a promise of eternal life.

Be happy! Enjoy life! Love one another!

This point was raised in an article entitled “Too Young to Die, Too Old to Worry” by Jason Karlawish, a professor of medicine, just after the publication of the Emmanuel essay, but without citation to same. Karlawish said, “Age seems to be a blunt criterion to decide when to stop” and “we desire not simply to pursue life, but happiness, and . . . medicine is important, but it’s not the only means to this happiness.”

Here are some of my blog posts that relate to the previous statement of reasons why I do not desire to die at 75.

Post #	Date	Title
19	04/22/11	Retiring from Lawyering
21	04/23/11	My First Ten Years of Retirement
226	03/15/12	Gratitude I
242	04/11/12	Gratitude II
243	04/13/12	Gratitude III
276	06/13/12	Gratitude Revisited
221	03/08/12	Intimations of Mortality
489	04/08/14	Mortality
492	04/11/14	Death Certificates’ Documentation of Mortality
466	02/06/14	My General Thoughts on Vocation
475	02/23/14	My Vocations

[1] Emmanuel makes no reference to the immediately preceding article in the magazine by Greg Easterbrook, What Happens When We All Live to 100?, The Atlantic at 61 (Oct. 2014) that discusses research into further increases in vibrant life span.

My Vocations

The words and music about vocation at the January 26^th and February 9^th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.

Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.

That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.

For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.

This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.

I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.

One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.

Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.

The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.

U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.

I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.

I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.

In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.

Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.

After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.

I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.

In 2011 as a member of the planning committee for my Grinnell College class’ 50^th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.

Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.

Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.

The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.

I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”

Or as Rev. Hart-Andersen said on February 9^th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”

What’s next?

Jury Duty

In late April I received a Minnesota Jury Summons ordering me to appear at the Hennepin County Government Center in downtown Minneapolis on May 6th for two weeks of jury duty.[1]

The form advised me that my name “was randomly selected from a list of licensed drivers, state identification card holders and registered voters in [the County].” Each year approximately 30,000 such summonses are issued.

The Summons contained a Qualification Questionnaire that had to be answered and returned to the court within 10 days. In addition to basic personal information, the Questionnaire asked if you were a U.S. citizen, were at least 18 years of age and a resident of Hennepin County, were able to communicate in English, had any physical or mental disability that would affect your ability to serve, had ever been convicted of a felony, had been on jury duty in the State in the past four years and were a judge in the judicial branch.

Although I was eligible for an automatic excuse from such duty for people over 70 years of age, I did not exercise this right. I thought I was fit and able and should fulfill this obligation of citizenship. As a former lawyer who tried some jury cases, I also thought it would be educational and interesting to see the trial process from a different perspective. I thus answered the call for service even though I thought it most unlikely that I would sit on a jury because trial lawyers are reluctant to allow current or former lawyers on a jury due to fear that they would dominate other jurors and use their pre-existing legal knowledge to influence their decision.

On May 6th at 8:15 a.m. I joined 124 other citizens in reporting for duty in the Jury Assembly Room at the Government Center. Our attendance was taken by having the bar codes on our summonses read electronically.

Before we watched a movie describing the jury system in Minnesota and read the State’s Jury Handbook, we were told there were 105 pending cases that might require juries, that we were not to discuss any cases or read or see any media coverage of cases while we served and that we were not to do any independent Internet or other research or investigation regarding such cases. We also were told not to discuss the cases on any social media until they were over.

Around 10:00 a.m. 14 potential jurors were called and escorted upstairs to the courtroom for a case.

Potential Juror in a Civil Case

A half hour later I was included in a panel of 16 for another case, and we were escorted upstairs to the courtroom of Judge Mel Dickstein[2] for a civil case by an interior design company against Bernard Berrian[3] for alleged unpaid fees for work on a condo in downtown Minneapolis.

After brief introductions of the trial lawyers and their clients, the prospective jurors were subjected to voir dire, questioning by the Judge and then by the lawyers to try to determine if any of us had any reasons why we could not be fair and impartial in this case. This process took an hour in the morning and one and a half hours in the afternoon.

One of the judge’s questions was whether we ever had been deposed, i.e., given sworn testimony before trial. I answered “Yes,” and when I said it had lasted for five days, the Judge asked for my reactions to that experience. I said I often was frustrated and had greater sympathy for the many people I had deposed in my legal career and for the clients I had defended in depositions taken by other lawyers.

When trial lawyers question the prospective jurors, in addition to trying to see if there are reasons for disqualifying an individual, they also have other objectives. They want to obtain a sense of what the individuals are like to aid the lawyers’ exercising their preemptory challenges, i.e., dismissing some individuals for no stated reasons. They also try to give prospective jurors a peak at what their case is about and build rapport with the prospective jurors.

One of the attorneys in this case, I thought, failed in these secondary objectives by engaging in very detailed and unnecessary quasi-cross examination of some of the members of the panel. At least it annoyed me. Finally the judge called the lawyers to the bench and undoubtedly told them to speed up the questioning because thereafter the questioning was much shorter and was soon over.

As I sat in the jury box, I wondered why this case had not settled, as most similar cases do. Each side had two lawyers (or one lawyer and a legal assistant) at the counsel tables, thus increasing the costs of litigation for both parties. In this preliminary phase, we were not told how much money was at stake, but I could not believe it was immense.

Only one of the panel was excused for cause; she was responsible for taking care of her elderly mother. The lawyers then exercised their preemptory challenges. I was one of those thus striken.

I, therefore, returned to the Jury Assembly Room until 4:00 p.m. when I was released for the day. Later I was told that 124 of the 125 citizens in the Room that day had been called upstairs as potential jurors.

The next day (May 7th) 86 other citizens and I reported to the Jury Assembly Room at 9:00 a.m. This included some who had been on On-Call status the prior day. We were told that there were 35 potential jury cases on the trial calendar for the day.

Around 10:30 a.m. a group of potential jurors was called for a case. However, the Room’s computer had gone down, and all of us had to write our names on slips of paper, and the requisite number of slips was drawn at random from a bowl. I was not included.

At 11: 45 a.m. those of us still in the Room were released for our lunch break.

Potential Juror in a Criminal Case

After we had returned at 1:30 p.m., I was included in a panel of 35 potential jurors and escorted upstairs to the courtroom of Judge Lyonel Norris[4] for a criminal case. The defendant was an African-American man accused of domestic and sexual abuse, as I recall.

Judge Norris and then the lawyers in the case questioned 21 of us who were in the jury box to try to determine if there were any reasons why we could not be fair and impartial jurors in the case. This process lasted the rest of the afternoon until nearly 5:30 p.m. and most of the next morning (May 8th).

We were asked if we or any members of our families, including close friends, had ever been a victim of sexual or physical abuse or ever been accused of such crimes. I was astounded that 9 of the 21 said that they had. Some of the nine were then questioned about the circumstances at the judge’s bench while a “white noise” machine was turned on so that others in the courtroom could not hear what was said. Others of the 9 provided details involving other members of their families in open court. Afterwards one of the 9 was excused when she said she could not be fair and impartial in this case because of the nature of the criminal charges.

I was also surprised by how many of us answered affirmatively to the question of whether we or any members of our families, including close friends, had ever been accused of a crime, including DUI. Most talked about relatives and friends accused of DUI.

Each of the 21 people in the jury box provided basic personal information. I said that I was a retired lawyer and adjunct law professor, that my wife was also retired, that one of our sons lived in the Twin Cities area and was a principal of a gourmet coffee company, that our other son lived in Ecuador and was the C.E.O. of a non-profit environmental group and that I was an active member of Minneapolis’ Westminster Presbyterian Church.

In response to specific questions, I disclosed I had been a defendant in two civil cases, both of which had been resolved in my favor; that I had testified as a foundation witness in a federal court criminal case; that in the early 1970’s I had been a pro bono (no fee) lawyer for the Minnesota Civil Liberties Union in a lawsuit against a group of Minneapolis policemen for a political raid and that we had obtained compensatory and punitive damages against some of the defendants; that although I had never practiced criminal law, I had become interested in international criminal justice and the International Criminal Court as a result of my teaching international human rights at the Law School; and that my wife had been a volunteer coordinator at Minneapolis’ Neighborhood Involvement Program and Chrysalis Women’s Center which had programs for battered women.

After the questioning of the potential jurors was completed, no one else was excused for cause. Again, however, I was striken by the attorneys.

I returned to the Jury Assembly Room and was excused for lunch. When I returned at 1:30 p.m., I was informed that all of the other potential jurors and I were excused from the balance of our jury duty.

This week I received my State compensation for my jury duty $30.00 ($10.00/day) plus $11.34 for mileage.

Conclusion

I was impressed by the operation of the jury system. People in the Jury Assembly Room were attentive to the instructions and information being conveyed and respectful of the court officials and their fellow potential jurors.

In the two courtrooms the judges and trial lawyers were courteous and respectful of one another and of the potential jurors. I was most impressed with the judges’ emphasis of the need to have fair and impartial jurors and by their questioning of us, especially in the criminal case.

I also got to know some of my fellow prospective jurors and was most impressed by all of our ability and willingness to answer in public questions about our personal lives. I certainly believed that all of us were striving to do our best to provide information to the court about our personal circumstances that might affect our ability to be fair and impartial.

[1] Information about jury service is available on websites for the Minnesota State Courts and for the Hennepin County District Court.

[2] Although I knew or had appeared as an attorney before 19 of the 61 Hennepin County District Judges, I had had no prior experience with Judge Dickstein. Later I did research and discovered that he holds undergraduate and law degrees from the University of Minnesota and was a former Assistant U.S. District Attorney and a former Associate and Partner attorney in the Minneapolis law office of Robins Kaplan Miller & Ciresi, with which I had had several cases in my career. Mr. Dickstein was appointed to the bench in 2002 and elected for retention in 2004 and 2010.

[3] As several other prospective jurors and I stated to the court, we recognized Mr. Berrian as a former professional football player who had played for the Minnesota Vikings football team. After I had been dismissed as a juror in the case, I did some research and discovered that he had his own website.

[4] I also had no prior experience with Judge Norris. Later I did research and discovered that he had been a Law Clerk for Judge Michael J. Davis in state and federal courts, an Assistant Public Defender, Public Defender, Director of the Minnesota Department of Education’s Office of Equity and Assistant Federal Defender before he was appointed to the bench by Governor Mark Dayton in 2011 and then elected to retain his judgeship in 2012. Growing up in Washington, D.C., Mr. Norris in an interview after his judicial appointment said he was a runaway and homeless at age 16. He was fortunate to meet someone “in the business of helping kids,” who lead him to Runaway House and later to Carleton College, one of Minnesota’s premier private liberal arts institutions. There he became interested in law and then attended, and was graduated from, the University of Minnesota Law School.